AUTO AND METAL ENGINEERS Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS petition and reply thereto run into pages. Without referring to unnecessary averments made therein the facts which are relevant for decision of this writ petition may be briefly stated as under : The petitioner is a partnership firm and is assessed to income-tax as a registered firm. It runs business at Faridabad, Shrimati Sunanda Rani Jain, wife of Shri V. K. Jain, and Shrimati Karuna Jain, wife of Shri S. K. Jain, are its partners. The premises of the factory and business and also the residential places of the aforesaid partners of the firm were raided on April 24, 1971, and huge records including books of account and other documents were seized by the income-tax authorities. The petitioner could furnish the income-tax return (hereinafter referred to as "the return") for the year 1972-73 at the most by March 31, 1975. It failed to do so, and furnished it (the return) on May 12, 1975. The Income-tax Officer, therefore, ignored it and issued notice (annexure "p-2") (hereinafter referred to as "the notice") under Sections 147 (a)/148 of the Income-tax Act, 1961 (hereinafter called "the Act"), on July 17, 1975, requiring the petitioner to file the return within thirty days from the date of service of the said notice. Therefore, the petitioner filed this writ petition impeaching the validity of the notice on various grounds which included (i) that the return had already been filed and was pending ; (ii) that the assessment for the year 1972-73 had become time-barred; and (iii) the Income-tax Officer had no material with him to entertain the necessary belief that the income of the petitioner chargeable to income-tax for the assessment year had escaped assessment. It was averred in the said grounds that the notice was ultra vires and without jurisdiction. The petitioner, therefore, claimed a writ in the nature of certiorari quashing the notice and a writ in the nature of mandamus or prohibition restraining the Income-tax Officer from making the assessment. The writ petition has been contested by the respondents.

(2.) THE broad facts were admitted, but it was pleaded that since the return filed by the petitioner on May 12, 1975, was beyond the period prescribed for filing the same, the same was treated as non est and the notice had been validly issued.

(3.) MR . D. D. Verma, learned counsel for the petitioner, has contended that the Income-tax Officer had issued a notice under Section 139 (2) of the Act to the petitioner in or about the year 1974 and, therefore, the Income-tax Officer was bound to pass the assessment order on or before March 31, 1975, irrespective of the fact that the petitioner had not furnished any return before that date. According to him, when the petitioner failed to furnish the return, the Income-tax Officer should have proceeded to pass the assessment order to the best of his judgment under Section 144 of the Act. Since he did not do so, no assessment order could now be made by him. He relies on the provisions contained in Section 153 (1) (a) (iii) in this behalf. He adds that there is no rule prescribing a specific form for a notice to be issued under Section 139 (2) of the Act and the Act does not contain any provision other than the one enacted in Section 139 (2) of the Act requiring the petitioner to file the return. Therefore any requisition, in whatever words, which had been made by the Income-tax Officer calling upon the petitioner to file the return should be deemed as notice under Section 139 (2) of the Act. True, I have not been referred to any rule prescribing a specific form for a notice to be issued under Section 139 (2) of the Act and I have also not been shown any provision other than the one contained in Section 139 (2) of the Act which authorises the Income-tax Officer for issuing requisition to an assessee to file the return. But, for the reasons to be recorded presently, it cannot be maintained that any notice under Section 139 (2) of the Act had at all been issued by the Income-tax Officer to the petitioner.